Spying and Secret Courts in America: New Rules and New Insightsby Lee S. Strickland

Lee S. Strickland is a visiting professor in the College of Information Studies, University of Maryland; e-mail: leess@ucia.gov

If there is any issue that galvanizes the American public in general as well as the academic and civil liberties communities, it is the role and judicial supervision of intelligence in American life. Indeed, it is a
concern that spans the centuries – from our English ancestors to current citizens who experienced government excesses in the 1970s and remain concerned today, as government powers (authorities) have expanded in light of the war
on terrorism with the USA Patriot Act of 2002.

Five hundred years ago English liberties were challenged by the court of the Star Chamber – an entity of the state that began benignly and publicly but evolved under the Stuart monarchs so that, by the reign of
Charles I, its name had come to symbolize arbitrary, secretive proceedings crushing personal rights and liberty with no right of appeal. And although our Constitution contemplates that our judicial process today is fully open
to the public, our Congress has created a secret U.S. Foreign Intelligence Surveillance Court (FISC) to mediate the tension between our individual rights and the President's national defense authorities.

It was thus of great interest that on August 22, 2002, and for the first time, a lengthy opinion of the FISC in Washington was released to the public (see The FISC Opinion). Notably, it sheds detailed light on the
practice of applying for Foreign Intelligence Surveillance Act (FISA) warrants, the sharing of the acquired intelligence information with criminal law enforcement authorities and the Administration's latest arguments as to the
scope of certain USA Patriot Act authorities. What we see from the insights in this opinion are information management difficulties in past cases that have raised significant judicial concerns as well as a riveting political
and legal debate today concerning the use of intelligence authorities by law enforcement. What we will decide as a nation is, quite likely, nothing less than the proper scope of intelligence in our democratic society.

The FISA Process and Problems in Brief

Readers will recall our previous Bulletin article (February/March 2002) that discussed the FISA and the changes effected by the recent USA Patriot
Act. In brief, the FISA regulates the collection of "foreign intelligence information" (see Definition of Foreign Intelligence Information) from foreign powers or agents of foreign powers through a complex scheme of Attorney
General (AG) approvals and in most cases applications to the FISC for secret warrants. The threshold condition for such warrants is not probable cause of criminal activity as with traditional Fourth Amendment law, but rather
probable cause that the target is a foreign power or an agent of a foreign power. Thus, in light of the fact that FISA warrants can authorize electronic surveillance and physical searches and may be directed against both aliens
and U.S. persons, the constitutional concern has always been that this process should not erode our basic rights under the Fourth Amendment.

It is this concern that led to the minimization requirements in the FISA and implementing AG procedures – to constrain the acquisition and retention and prohibit the dissemination of non-publicly available information
concerning U.S. citizens or permanent resident aliens if it does not concern "foreign intelligence." These procedures, however, specifically allow for the retention and dissemination of information that relates to terrorism or
is evidence of any other crime that has been, is being or is about to be committed. Thus, this is the limited authority to share intelligence-acquired information in the United States with law enforcement authorities but also
restriction that has heretofore prevented law enforcement authorities from having direct access to FISA files and from directing or otherwise controlling FISA investigations toward law enforcement objectives. If this were not
the case, the easier-to-grant FISA warrants could become the norm for any criminal case having some "foreign intelligence" aspect.

In recognition of the important constitutional considerations at issue, the FISC has established a "wall" procedure for all FISA orders that requires (a) certification that the purpose is foreign intelligence, (b)
disclosure of all criminal information aspects of an intelligence case including specifics on information sharing with law enforcement and (c) designation of a senior official to moderate the flow of information to law
enforcement including the FISC itself in significant overlapping criminal and intelligence cases. Again, the purpose was "to preserve both the appearance and the fact that FISA surveillance and searches were not being used sub
rosa for criminal investigations" and to prevent prosecutors from becoming "de facto partners in FISA searches." [FISC Order of May 17, 2002]. However, while these constitutional limitations and processes appear to many as
clear and reasonable, the FISC over the last two years has had serious concerns about inaccurate FBI affidavits in FISA applications – errors that have misled the Court as to actual law enforcement purposes and information sharing in at least 75 FISA cases. And, although the FISC directed the Department of Justice to conduct an investigation, no report was forthcoming.

The USA Patriot Act Changes and Attorney General's Implementations

Among the many changes effected by the USA Patriot Act and particularly relevant here, the basis for granting FISA orders was changed from foreign intelligence being the "primary" purpose to a "significant" purpose.
Why this seemingly technical change? It reflects the reality that most terrorism investigations have both intelligence and law enforcement aspects and Congress wanted to ensure that the existence of a law enforcement proceeding
would not legally imperil a continuing intelligence investigation. The Congress also took the related step of ensuring that information could be effectively shared between intelligence and law enforcement personnel. While the
law had not really prevented such exchanges, a perception had grown among officials, as evidenced by recent statements and testimony by FBI officials, that there were significant limitations. Thus, the USA Patriot Act expressly
authorized intelligence officers who are using FISA to consult with federal law enforcement officers and to exchange a"full range of information and advice. [See 50 U.S.C. §§ 1806(k) and 1825(k).] Together, the intent of these provisions was to reduce the conundrum between intelligence and law enforcement personnel as to the path of an investigation and to make clear that a FISA order could be obtained even if a criminal prosecution was contemplated or indeed had been instituted during the pendency of an intelligence investigation.

Few thought at the time of passage that these provisions would constitute a new grant of positive authority to law enforcement personnel – but they did and led to the FISC order that is the subject of this article.
Notwithstanding the concerns of the FISA Court as to inaccurate FBI submissions, the AG proposed on March 6, 2002, new FISA minimization procedures including giving criminal prosecutors access to all information developed in FISA cases and allowing criminal prosecutors to consult and provide advice and recommendations to intelligence officials regarding any intelligence case including the initiation, operation, continuation or expansion of FISA searches.
The proposed March 2002 procedures are available at www.fas.org/irp/agency/doj/fisa/ag030602.html.

The increased sharing, as we have seen, is certainly authorized by the terms of the USA Patriot Act. The direct use of the FISA by law enforcement is, however, more problematic and is supported only by the Administration's argument predicated on the "significant purpose" change – specifically, that the change contemplates dual intelligence and law enforcement objectives and hence dual use. Accordingly, a foreign counter-terrorism (CT) intelligence purpose can be met by the fact of a criminal prosecution for terrorism and hence such a criminal prosecution may make direct use of the FISA. The contrary argument is that the dual objective is correct but that FISA authorizes use only by intelligence officials and that use by criminal authorities eviscerates our Fourth Amendment rights requiring warrants based on probable cause of criminal activity.

In considering the proposed direction, the FISC approved the sharing provisions as provided by the USA Patriot Act but held that the direct use of FISA authorities by law enforcement officials represented a
substantial and constitutional issue. Specifically, the court held that the AG directive would give criminal prosecutors a significant role in "directing" FISA investigations, would violate the statutory basis for FISA orders
(intelligence purpose) and would effectively substitute the FISA for the Fourth Amendment. Accordingly, the FISC revised the proposed AG procedures in part to allow the new levels of coordination and sharing but to retain the
critical aspects of the "wall" that precludes direct use or control of FISA authorities by law enforcement personnel. Hence, to be maintained for the moment is the "bright line" between criminal and intelligence investigations and the rights of U.S. persons under these two bodies of law.

What Do These Developments Mean for Us as Citizens and Information Professionals?

First, for the moment, we preserve Fourth Amendment values while still allowing the most effective intelligence and law enforcement operations. In no manner does the FISC order compel the United States to be impotent
in the face of terrorism. Intelligence and law enforcement investigations of the same target can proceed in tandem with full coordination and sharing. If and when critical information is developed – either through intelligence
or law enforcement efforts – the United States can employ a panoply of tools to act against the danger presented. If there is sufficient evidence of terrorism or other U.S. crime, a prosecution can ensue and, if there is not,
deportations and/or foreign prosecutions are all available options. These limitations simply mean that criminal prosecutors may not freely use the FISA process in lieu of established constitutional search and seizure process.

Second, we must be prepared to join in the continuing legal and political debate over the proposed procedures. On August 23, 2002, the Department of Justice appealed this decision to the special three-judge court that
was created to review FISC decisions. This court – the U.S. Foreign Intelligence Surveillance Court of Review – has not met previously and consists of three federal appellate court judges appointed on a rotating basis by the
Chief Justice. A decision is pending at the present time and further review is also available by the Supreme Court. And, irrespective of the final judicial decision, there will be further political action. In one of the more
unusual aspects of this controversy, the Government brief on appeal (available at www.fas.org/irp/agency/doj/fisa/082102appeal.html) asserted that Senator
Leahy, identified as the "drafter of the coordination amendment" in the Patriot Act, "had agreed" that there is no longer a distinction between using FISA for a criminal prosecution and using it for foreign intelligence
collection. But in a statement on September 10, 2002, in the context of a Senate Judiciary Committee hearing, the Senator clearly renounced the assertion that he supports the Attorney General's position:

That was not and is not my belief. We sought to amend FISA to make it a better foreign intelligence tool. But it was not the intent of these amendments to fundamentally change FISA from a foreign intelligence tool
into a criminal law enforcement tool. We all wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did not intend to obliterate the distinction between the two, and we did not do
so. Indeed, to make such a sweeping change in FISA would have required changes in far more parts of the statute than were affected by the USA Patriot Act . . . [and] such changes would present serious constitutional
concerns.

And, perhaps beyond the legal debate, another question is presented – the practical necessity, not to mention the political wisdom, of the proposal. It is not at all clear why full sharing and coordination is
insufficient, why this authority is truly needed and why we should as a nation detract our attention from the real challenge of terrorism with a perceived threat to civil liberties. In sum, perhaps the proposal harms U.S.
interests by eroding public support for the counter-terrorism mission.

Third, we must plan in our businesses for the possible receipt of FISA orders since this debate does not affect the basic availability and terms of such orders. Information-centric institutions – schools,
libraries and Internet service providers – will continue to receive secret FISA warrants and recipients will be barred from disclosing the terms. Of course, this does not mean that recipients are prevented from fully disclosing
the fact and content to management, directors and legal counsel for their institutions. A more open question is whether recipients may disclose the simple fact that their institutions have received one or more FISA warrants;
authorities are mixed but the weight tends to support the right to make this very limited statement.

And fourth, we should consider whether information exploitation tools – more than problematic legal arguments – could best facilitate the effectiveness of dual law enforcement and intelligence cases. For
example, would visualization tools allow us not only to understand the data better but also track the originating interests and the using interests? Would time series analysis tools allow much the same tracking but include the
ability to understand how information builds a case? And lastly, would not commercially available collaborative tools provide a mechanism to share and also track information relevant to multiple cases? Such tools could provide
an operational benefit not only to concerned government officers but also to the FISC and government managers to ensure their appropriate oversight and adherence to minimization requirements. In sum, many of the errors of the
past that greatly concern the FISC and limit investigative efforts today, might be ameliorated by the judicious application of information technology.

The FISA defines foreign intelligence information as information about (1) an actual or potential attack or other grave hostile acts of a foreign power, (2) sabotage or international terrorism by a foreign power or an agent of a foreign power, (3) clandestine intelligence activities by a foreign power or agent or (4) a foreign country that is necessary to the national defense or the security of the United States or the conduct of the foreign affairs of the United States.